LASTING POWERS OF ATTORNEY
It is sensible for you to consider what will happen if at any time of your life, you are unable to manage your own affairs, whether temporarily or permanently. Loss of mental capacity can occur at any age as result of accident or illness. It is usually better if you have chosen and authorised other trusted person(s) to act on your behalf. This can be done by creating and registering the Lasting Power of Attorney.
What is a Lasting Power of Attorney?
The Lasting Power of Attorney (LPA) is a legal document which lets you appoint another trusted person(s) to act on your behalf. Under an LPA, a donor is able to confer on the attorney(s) authority to make a decision about the donor’s personal welfare and/or the donor’s property and financial affairs.
Anyone over the age of 18 can have an LPA. However, it is actually a good idea to set up an LPA as soon as possible especially if you have a condition which is likely to cause a loss of mental capacity later on, such as dementia.
What are the types of LPA?
There are two types of LPA:
- Property and Financial Affairs: This LPA gives someone the authority to manage your property and money. This could include bank or building society accounts, bills, collecting a pension o benefits and even selling your home.
- Health and Welfare: This LPA covers areas surrounding your health and well being, including decisions around your daily care (washing, dressing, eating etc), medical care and treatment or whether it is time to move into care home.
Who can be an Attorney?
The attorneys need to be over 18 and not subject to a debt relief order or declared bankrupt. However, it is advisable to select person or persons who know you well, is organised and interested in ensuring your well being and most importantly who can be trusted with such important decisions of your life. You can also select legal professionals for being your attorney.
A person(s) selected to act as an Attorney can refuse to act and so it is advisable to consult with them before signing and registering the LPA. Once it is registered, if the attorney refuses to act an Attorney, it is known as “revoking” an attorneyship. If the LPA is registered and attorneys must act jointly (ie all together for all decisions), revoking the attorneyship will invalidate the LPA and a new LPA will have to be made, unless there are replacement attorneys ready to step up. If the attorneys act jointly and severally, then the remaining attorneys can continue to act even if one of them revokes their attorneyship.
New attorneys cannot be added to a registered LPA. In such a case, a new LPA would have to be made and registered with the Office of Public Guardian.
Why is a Certificate of Capacity required?
A Certificate of Capacity is required to establish that the donor, at the time of making an LPA:
- Understands the purpose of the LPA and the scope of the authority conferred under it;
- No fraud or undue pressure is being used to induce the donor to create the LPA; and
- There is nothing else which would prevent an LPA from being created.
What is the price for an LPA?
The price varies depending on whether you are setting up an LPA in England and Wales, Scotland or Northern Ireland. In England and Wales, it costs £82; in Scotland it costs £73 and in Northern Ireland it costs £115. These fees refer to each type of LPA, so if you are setting up two types (ie Financial and Property & Health and Welfare), you will have to pay the fees twice. However, if your income is less than £12,000 per annum you can be eligible for certain financial exemption or remission depending upon valid financial evidence for the same.
How much time is required for registering an LPA?
The LPA cannot be used until it is registered with the Office of Public Guardian. Registering an LPA usually takes around 8 to 10 weeks and sometimes even longer. This allows for the time needed to allow for the notification of those in the “People to be notified” section. Once registered, the LPA is valid and may be used by the attorney(s), subject to any express restrictions mentioned in the LPA.
What would happen if I do not make an LPA?
If you do not make an LPA and become unable to make decisions for yourself, it can result in serious financial, legal and emotional problems for your family. Your finances could be frozen until the Court of Protection appoints a deputy. You would have no control over who is appointed and family and friends do not automatically have the right to take over your affairs.
You can choose to make an LPA either with or without any legal professional. Many people however choose a legal professional to make sure that everything is filled out correctly and does not cause hassles in setting it up.